The opinion of the court was delivered by: GESELL
GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE
On June 15, 1989, defendant filed under seal a paper captioned "Reply Memorandum" in support of an earlier post-trial motion (#90) seeking an in camera hearing relating to qualifications of juror Tara L. King. On the previous day, June 14, the Court had already denied motion No. 90. After examination of the "Reply Memorandum," however, a hearing appeared necessary because of fully documented additional information included, and the Reply Memorandum was treated as a motion for reconsideration. By Order of June 20, 1989, the Court released all materials relating to motion No. 90 which had previously been filed under seal and scheduled a public evidentiary hearing for June 28, 1989. The hearing was held and defendant has moved for a mistrial.
The motion concerns Tara L. King, age 34, a copy machine operator with a steady history of employment. She completed the 12th grade at Roosevelt High School and has lived in the District of Columbia for 27 years. She has five sisters and nine brothers and in recent years she and her mother have lived with many of her siblings in the family home. She is a registered voter. This was her first experience as a juror.
Prior to the hearing the Court addressed one aspect of Independent Counsel's opposition to defendant's motion for a hearing. The prosecution had correctly cited a line of cases which require defendant to move promptly whenever it receives information of prior misconduct. Since it is clear, as stated in United States v. Jones, 597 F.2d 485, 488 n.2 (5th Cir. 1989), cert. denied, 444 U.S. 1043, 62 L. Ed. 2d 728, 100 S. Ct. 729 (1980), that "a defendant cannot learn of juror misconduct during the trial, gamble on a favorable verdict by remaining silent, and then complain in a post-verdict motion that the verdict was prejudicially influenced by that misconduct. . .," the Court directed defendant to establish that it had not withheld information on juror "misconduct" for tactical purposes.
Defense counsel advised the Court on June 23, 1989 that they had obtained Exhibits 2 and 3, first submitted on June 15, 1989, shortly before the scheduled date for filing post-trial motions on May 30, 1989, and that they obtained Exhibits 4, 5 and 6 on June 9, 1989. The defense acknowledged that after the verdict but as early as May 16, 1989 counsel had been informed that a brother of King had drug problems, had been picked up by the police and involved in a Superior Court prosecution. While a more candid approach by defendant's counsel to the Court would have saved delay and much inconvenience, it is clear that there was no effort to "sandbag" the Court by first gambling on the verdict. Although on May 5, 1989 the Court approved counsel's request to interview jurors, defense counsel advised the Court that King "has not granted counsel for defendant an interview at any time." All information came to the defense post-verdict and was presented in a reasonable time.
Selection of the jury progressed through the following stages.
First. Jurors were brought to courtroom No. 6 and the Deputy Clerk administered an oath in which each juror swore to answer all questions truthfully. The Court then asked each juror to fill out a detailed voir dire questionnaire. The Court emphasized the need for each juror to answer fully and correctly and the jurors then were specifically sworn to answer the questionnaire truthfully. (Tr. 175-178.) Thereafter, they were taken to the Ceremonial Courtroom where they filled out the voir dire questionnaire at their own pace.
Second. Each juror who remained eligible after completing the questionnaire returned to the courtroom, one at a time, for further questioning. The Court and counsel then reviewed a copy of the juror's completed voir dire questionnaire and after some preliminary questions by the Court, counsel on each side asked additional questions of each juror. This questioning was not limited to answers given on the questionnaire.
Third. A juror would then be temporarily excused and after hearing any objections to the juror's qualifications the Court determined whether or not the juror appeared qualified.
Fourth. On a few occasions a juror found qualified returned for additional questioning at the request of a party.
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